delivered the opinion of the Court:
We do not propose to follow counsel in the very elaborate discussion of the facts presented by this record. Upon some of the controverted questions the evidence is in direct conflict and wholly irreconcilable, and any attempt of ours to harmonize it or show that it is the result of honest misapprehension, would most likely fail, and even if successful, would not compensate for the amount of labor it would necessarily involve. We shall, therefore, content ourselves with a statement of the general conclusion reached with respect to the facts and a notice of such of the objections urged against the decree of the circuit court as we deem necessary to a presentation of our views upon the legal principles actually involved in the controversy, and which must determine the rights of the parties thereto.
In considering the objections urged against the decree of the circuit court we shall not attempt to follow the order or terms in which they are expressed by counsel for defendants in error, but shall pursue such order and set forth the objections in such general terms as will, in our judgment, enable us to present the legal aspects of the case in the most perspicuous light; and when it is believed that our efforts in this direction will be aided by considering two or more of such objections together we shall do so.
Among other objections urged, it is claimed generally that the evidence does not warrant the decree and that the relief granted by it is based upon a theory different from that claimed in the bill, and that there is a substantial variance between the allegations in the bill and the proofs. After a very careful examination of the record we are satisfied that the circuit court properly found the equities of the case with the complainants, and that the decree rendered by that court is substantially correct, and fully warranted by the weight of the evidence. While all of the allegations of the bill were not proved precisely as charged, yet we are of opinion that so many of them as were material to sustain the decree rendered were substantially proved, and this is all the law requires. It often happens, as in the case before us, that in framing a bill in chancery the pleader, after having correctly stated the actual facts of the case, which is all the law requires, proceeds to make some additional allegations with respect to what the pleader supposes to be the legal effects of those facts, which may be entirely erroneous, yet the complainant in the case is not to be concluded or prejudiced by such unnecessary statement. His rights must .depend upon the actual facts stated, and not upon the erroneous conclusions of the pleader with respect to them. So in this case, it may be conceded that the pleader in framing the bill misapprehended the legal effect of the mistake of Wells in making the assignment of the Sumner contract to the Rockford National Bank instead of to defendants in error, and also that he was mistaken as to the principles upon which the court in such case would grant relief, and still it does not follow that the decree is erroneous because relief is granted on a different theory from that contemplated by the counsel. For inasmuch as the actual facts are correctly stated in the bill, it was the duty of the court to render such decree and grant such relief as the law required from the actual facts stated and proven on the hearing, without regard to what the pleader may have contemplated in framing the bill.
It is urged with much apparent earnestness that, although the Sumner contract was made out in the name of John Allen, yet that Thomas Allen alone was interested in it; that his father in procuring the contract was acting on his behalf, and that but for the mistake of the parties it would have been made out in the name of Thomas Allen instead of John Allen.
This position is hardly reasonable, to start out w.ith. How John Allen could sign an instrument of this kind in his own name, and at the same time suppose some one else was signing it, or that he was signing it for some one else, is difficult to conjecture.
The truth is, the testimony of the Allens upon the subject of Thomas’ interest in the contract, and the premises with respect to which it was made, is not creditable to either of them, and will not bear analyzing.
The weight of evidence clearly shows that the claim of Thomas Allen to the premises in question was, as against defendants in error, fraudulent and void.
It is also urged that this suit, so far as relief is sought against Sunnier, is in the nature of a bill for a specific performance, and that defendants in error have no rights as against him which John Allen himself could not enforce. And it is further claimed that under the facts in proof John Allen could not have maintained a bill for specific performance. It must be conceded that if, under the facts before us, John Allen could not have maintained a bill for specific performance, it follows as a legal sequence that the bill in this case can not be sustained. And this really presents the only question in the case about which there is any serious difficulty, and that is rather apparent than real.
Every case of this character must depend largely upon its own circumstances, and whether the chancellor will or will not in a given case decree the specific performance of a contract is to a large extent a matter of discretion. Yet this discretion is not an arbitrary one. It is a legal discretion, to be exercised in conformity with certain fixed and well recognized principles which govern courts of equity in the exercise of this branch of their jurisdiction, and where the decree of the court below is in conformity with these general principles a court of review will not reverse unless error has otherwise intervened.
In Fish v. Leser et al. 69 Ill. 394, the general doctrine here statejd is thus expressed: “Courts of equity will not always enforce the specific performance of contracts. Such applications are addressed to the sound legal discretion of the court, and the court must be governed to a great extent by the facts of each case as it is presented.”
To the same effect is the case of Franz v. Orton et al. 75 Ill. 100, and many other cases that might be cited.
Recurring now to the facts in this case, it will be remembered that the contract between Sumner and John Allen bears date November 1, 1866, and the last payment matured on the first of November, 1869. At this time there was but little paid on the contract, and by the terms of it there is no question but that Sumner would, upon Allen’s default after tender of a deed to the premises and demand of balance due upon the contract, have been authorized to declare a forfeiture of the contract, and thereby have defeated all claim and right to a specific performance of it. But Sumner, for reasons we suppose satisfactory to himself, did not see proper to take this course. More than a year after, to-wit: on the 28th of December, 1870, he receives a payment on the contract of four hundred dollars ($400), thereby recognizing the contract as a present binding obligation, and also thereby waiving the provision in it making time of the essence of the contract.
Again, on April 1, 1871, a year and several months after-wards, there is an accounting between the parties, and the balance due on the contract is fixed at $495.30. Time runs on, and in 1874-5 Allen makes valuable improvements on the lots in question, amounting in value to' some $4,000. Both before and after the making of the improvements Allen is in the possession of the premises as owner and paying the taxes thereon. Can it be supposed that Sumner during all this time stood quietly by permitting Allen to expend this vast amount of money in improving the property and paying all the taxes thereon without intending that he should have the benefit of these outlays? To have permitted these large expenditures to be made by Allen after the contract had matured, with the purpose of afterwards declaring a forfeiture and appropriating the property thus enhanced in value to his own use without any compensation to Allen, would have been the grossest injustice on the part of Sumner. We are pleased to say, however,"that nothing appears in the evidence to indicate that Sumner contemplated anything of the kind; but his entire conduct goes to show that he fully recognized the rights of Allen in the premises, and intended to do justice by him. But whatever his private purposes may have been, it is an unquestioned fact that, prior to the time defendants in error made the tender of the balance due from Allen to Sumner on the contract, the latter had never declared or attempted to declare a forfeiture of the contract, or otherwise attempted to question Allen’s rights under it. Suppose, after Sumner had permitted Allen to go on and expend some $4000 in improving the property in the manner we have stated, Allen had made the tender of the balance due on the contract before any forfeiture had been declared, in the same manner that defendants in error did, can it be doubted for a moment that a court of equity would have compelled Sumner to convey the premises' to Allen upon the payment of the balance due ? We think not.
In Peck et al. v. Brighton Company, 69 Ill. 200, which was a bill for specific performance by appellee against appellants as heirs at law of P. F. W. Peck, deceased, it appeared that on the first of ¡November, 1857, Peck, ancestor of appellants, sold a lot of land to one Iglehart, to be paid for in instalments, the last one maturing on the 29th of October, 1859, the total consideration being $3375. On December 12, 1857, there was a payment of $200, and on the 6th of January, 1868, ten years afterward, Iglehart conveyed the property to one Woodward, and the latter conveyed to appellee. Iglehart, on his purchase, took possession and made improvements to the value of $3000. In October, 1871, Peck died, and on the 4th of March, 1872, his heirs attempted to declare a forfeiture. On the same day appellee tendered the heirs of Peck $6000 balance due under the contract and demanded a deed, which being refused, appellee filed a bill for specific performance, and it was held by this court that upon the foregoing state of facts appellee was entitled to the relief prayed, and a decree of the court below to that effect was affirmed. It will be observed that both the amount in default and delay in payment in that case are much greater than in the case before us, and nothing appears to excuse the delay more in one case than in the other. In that, as in this, it was claimed that there had been a forfeiture of all rights under the contract, but the defence did not prevail, nor can it prevail here, and the decision in that case must be held conclusive of this.
Again, it is urged that Blake was an equal owner with Sumner of the premises in question, and that his rights are wholly ignored by the decree. There are two answers to this objection. In the first place, both at the time of the making of the contract and at its assignment to defendants in error the title of record to the premises was in Sumner alone, and it is not so much as charged that defendants in error at the time of such assignment had any knowledge or notice of Blake’s having or pretending to have any claim to or interest in the premises, and it is well settled that interests in land acquired through contracts of purchase fall within the protection of the recording acts. In the second place, whatever interest Blake may at one time have had in the premises, it does not satisfactorily appear that at the time of the commencement of this suit he had any interest whatever.
It seems also to be claimed by plaintiffs in error, that the assignment of a contract for the purchase of land as security for the payment of money or the performance of some collateral undertaking is the creation of an express trust, and that therefore the terms, conditions and purposes of the assignment must be expressed in writing, otherwise it will be obnoxious to the Statute of Frauds; and with this view of the law the statute is interposed and expressly relied on in this case.
There are certain statements in the bill with reference to the supposed legal effect of the assignment in question, to which we have heretofore adverted, that seem in some degree to justify the view taken by plaintiffs in error. But, as already observed, the rights of a complainant must be determined by the facts charged in the bill and proved on the trial, and not by the mere conclusions of the pleader.
The facts with reference to the transfer of the Sumner contract to defendants in error as charged in the bill and shown by the weight of testimony, are substantially these:
The transaction was mainly between John Allen and Gilbert Woodruff, the latter acting on behalf of himself and the other sureties of Allen. The latter came into the bank of which Woodruff was President and handed him Allen’s contract with Hough & Co. for his signature to the guaranty which was written at the bottom of it, and it was signed by Woodruff accordingly. At the same time Allen handed Woodruff the Sumner contract, stating that he gave it to him as a collateral or indemnity for signing the guaranty, and it was accepted as such. Woodruff, after receiving it, perhaps supposing that it would be best to have the evidence of its transfer in writing, without consulting Allen at all handed the contract to Mr. Wells, one of the clerks in the bank, requesting him to write an assignment thereon, which he accordingly did; but instead of making the assignment to Woodruff, as he should have done, it was made to the Bock-ford National Bank, and was in that form signed by Allen and then laid away in the vault of the bank, without Wood-ruff discovering the mistake.
It is not necessary to inquire whether the assignment of the contract in question, in the manner stated, constitutes an express trust falling within the Statute of Frauds. It is sufficient to say that, admitting such to be the fact, plaintiffs in error are not in a position to avail themselves of the statute in question. The assignment must be treated as if made directly to Woodruff, for the evidence shows, that such was clearly the intention of the parties, and it is a familiar doctrine that courts of equity will regard as done that which was agreed to be done, and the utmost that can be claimed with reference to this assignment is, that upon its execution, whatever interest the bank thereby acquired, it held the same in trust for Woodruff and his co-sureties. But that is a matter wholly between them and the bank, and the bank, though a party to the suit, has interposed no claim to any beneficial interest in the subject matter of the assignment.
The Statute of Frauds, requiring express trusts to be mani-. fested or proven in writing, was enacted for the benefit of those claiming title under deeds or other instruments absolute on their face, and not for the benefit of those seeking to defeat the operation of such deeds by showing that they were made upon trusts not appearing upon their face. In all cases, where "a deed or other instrument of conveyance is absolute on its face, and the grantor or his assignee seeks to defeat its operation by showing that the deed, though absolute in form, was, in fact, executed upon certain express trusts, the grantee may invoke the protection of the statute by requiring proof of these alleged trusts to be made in writing. So, in this case, if Thomas Allen or those claiming under him were to attempt to defeat this assignment by showing that it was executed upon certain express trusts, Woodruff might doubtless invoke the statute for his protection, but upon what theory Allen can avail himself of it we are at a loss to determine. There is nothing in this objection.
It is further insisted that the decree of the circuit court is erroneous in this—that it did not allow Sumner interest on the balance due on the contract. It is a well settled rule, recognized alike by courts of law and equity, that a tender properly made and kept good is a complete answer to any claim for interest. Stow v. Russell et al. 36 Ill. 18.
Finally, it is claimed that the bill upon which the decree rests is fatally defective in not making the assignee in bankruptcy of John Allen a party. It is to be observed that no objection of this kind was urged in the court below. The only thing that appears in any of the answers upon this subject is the fact of bankruptcy and the appointment of an assignee, and it is insisted that by reason thereof John Allen ceased to have any interest in the subject matter of the suit, but it is not intimated in any of the answers that the proceedings were defective for want of proper parties. Most generally an objection of this kind, when it appears upon the face of the bill, must be made by demurrer. When it is not apparent on the face of the bill it should be raised by plea or answer. In cases, however, where the right or title of an omitted party must necessarily be passed upon or affected by the decree to be rendered, the objection may be taken at the hearing.
But the case before us is not one of that character. The claim here sought to be enforced was one in which the assignee of Allen had no interest. The complainants in the bill could not have, and did not seek, any relief as against the assignee. The scope of their bill was to reach a supposed interest of John Allen in certain property. The controversy between complainants and defendants was a matter in which the assignee had not the slightest concern. Whatever claim he had to the property in question, upon the showing of defendants in error themselves, was paramount to that of John Allen, which defendants in error were seeking to reach, and no good reason existed for compelíing him to become a party to a controversy in which he had no interest, for the purpose of establishing his rights in the property, which no one was questioning, and against whom no relief was asked or could be granted. He is not in the slightest degree affected by the decree rendered, and if he has any rights in the property, he can enforce them just as well after as before decree.
The views here expressed are fully sustained by the rule laid down by Story in his work on Equity Pleadings, and the decisions of this court. Story’s Equity Pleadings, see. 230, 237. Deniston et al. v. Hoagland, 67 Ill. 265, and Harris et al. v. Cornell et al. 80 Ill. 54, are cited by counsel for plaintiffs in error as laying down a rule different from that here stated.
It is a familiar principle, that in determining what is decided by a particular case, the general expressions of the court must be regarded as limited by the facts appearing in that particular case, and when the language of the court in Harris v. Cornell is confined to the particular facts in that case there is nothing in it in conflict with the views expressed in this.
That case was a bill in chancery at the suit of the heirs at law of one Harris, seeking to set aside a decree for fraud, rendered in 1855, and to which Harris appeared to have been a party.
The title of certain real estate was involved in the proceeding. Harris, about the 19th of August, 1841, had been declared a bankrupt, and his estate transferred to one Miller, as assignee. But most of the material facts upon which the decree was rendered arose prior to the bankruptcy of Harris and while the title to the lands in question was in him; and it further appeared that at the time of the litigation which resulted in this decree, Harris had left the State and ceased to exercise any control over the lands in controversy, having surrendered every thing to the assignee. Under this state of facts it was held in Harris v. Cornell, supra, that the assignee was a proper party to that proceeding.
The decision in that case is in conformity Avith the general rule that Avhere a particular title is assailed all persons claiming through it should be made parties, but not those having no interest in the controversy and who claim under an independent title. To illustrate: If the contract in question had been transferred to defendants in error prior to Allen’s bankruptcy, and a controversy had arisen between him and defendants in error as to their mutual rights under such transfer, then the assignee Avould, under the general rule above mentioned, have been a proper party, and the case Avould be analogous in principle to Harris v. Cornell.
The language of the opinion in Harris v. Cornell is, in some respects, broader than Avas necessary for the decision of that case, and, so far as'it Is in conflict Avith the vícavs here expressed, it must be regarded as modified.
But even in the case just supposed, after so great a lapse of time after the assignee’s right accrued Avithout interposing any claim to the property in question, it may be doubtful Avhether, under the Bankrupt act, it would have been necessary to have made the assignee a party.
Section 5056 of the Revised Statutes of the United States provides as folloAVS: “ Ho suit, either at IaAV or equity, shall be maintainable in any court betAveen an assignee in bankruptcy and any person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time Avhen the cause of action accrued for or against such assignee; and this provision shall not, in any case, revive a right of action barred at the time Avhen an assignee is appointed.”
This provision of the Bankrupt act was in force when John Allen became a bankrupt, on the 30th of December,'1868, and, continued in force till the General Bankrupt act Avas repealed.
At the time of the assignment of the Sumner contract, toAvit, on the 24th of July, 1871, John Allen Avas in the full and undisputed possession of the property in controArersy, in no manner recognizing any right thereto in the assignee, and had so been in possession from before the date of his bankruptcy up to that time, and the Federal Statute of Limitation, above cited, had at that time fully run.
It is clear, that at that time, the assignee could have maintained no suit in respect to the property or contract against Allen or any one claiming under him. And hence, even in the case supposed as already suggested, it is questionable whether, under the limitation act above cited, the assignee would have been a necessary party. Be this, however, as it may, it is quite clear, that under the facts in this case he was not a necessary party to the bill.
The equities of this case are decidedly with defendants in error, and perceiving no substantial error in the decree of the circuit court, it was therefore properly affirmed by the Appellate Court, and the judgment of that court must be affirmed.
Judgment affirmed.